There shall be wailing and gnashing of teeth

If you are like me, and I sincerely hope that you are not, then you steer clear of Kenyan news media. Much of what passes as news and political commentary these days is barely-disguised propaganda from, in order of precedence, the president, his embattled deputy, the former prime minister or the satellites of vocal acolytes that carry water for the three principals. Every now and then, has-beens like the former vice presidents and some of the more energetic members of parliament will get a bit of airtime as will the doddery political flies made up of "civil society" windbags that swarm around the high table.

Therefore, it is almost certain that if it hadn't been for the violent rhetoric surrounding the release of the recent Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, the event would have passed me by without so much as a by-your-leave. But, sadly, I happened to come across the spirited whining of the former leader of the majority party in the senate and my spirit is disturbed.

Listening to the poor man, one gets the impression that the BBI, the catchall acronym for the implementation of the Taskforce report, is a matter of such grave national importance that presidential political ambitions shall be made and unmade on the outcome of the process. Our eponymous senator went to great lengths to highlight the crucial weaknesses in BBI (while also bitching piteously about how he and his fellow travellers had been locked out of the process). It never occurred to him to admit that the reason why there was a BBI in the first place is that he, his principals and their political party have done a great deal of constitutional sabotage that necessitates a messy political solution today.

Members of my benighted profession are taught to look at circumstances for what they are and not for what our clients wish them to be. I have witnessed one of my seniors throwing his weight behind some of the BBI report's steering committee's implementation report and, dear friend, my spirit is disturbed because if there's one thing that the BBI in its entirety is, it is that it is proof of constitutional hooliganism of epic proportions. Some may argue that the trigger for the latest round of BBI madness is the Chief Justice's advice to the president to dissolve parliament over parliament's refusal to implement the two-thirds gender rule. Some may say that after a year, give or take a pandemic or two, of the inexorable marginalisation of the deputy president and his acolytes, it is time to put him out of his misery. Still others might say that if there is a way of putting constitutional square pegs in antidemocratic round holes, the BBI is it with its proposals for statutory health commissions and constitutional police councils.

I am of a different opinion. From the moment the reds accepted, with open contempt, the outcome of the 2010 referendum, they have worked assiduously to hamstring everything the constitution stands for, from gender equity to the protection of the rights of arrested persons, fiscal rectitude to the principles of devolution. Parliamentary independence was, and continues to be, notable by its absence. Judicial independence has been the focus of determined violence that it is a wonder that just recently the Chief Justice inaugurated a new court house.

In my opinion, the BBI is a fig-leaf for something that Kenyans are afraid to come to terms wit: the political elite who speak for and about them hate the people. They hate them with a deep and abiding malevolence that is revealed in the policies and laws that are enforced, and the constitutional principles that are exsanguinated in the open, the way sacrificial lambs were exsanguinated in biblical myths. I have no faith that the successful implementation of the recommendations of the BBI Taskforce will re-acquaint Kenya's elite with the basic tenets of constitutional values. In fact, if (or when) the BBI recommendations are fully implemented, I predict that Kenyans will have great cause to regret their choices of elites. Like it is told in the Gospel according to St Matthew, there shall be wailing and gnashing of teeth.

Badi & Co. and the Bill of Rights

Paternalism does not sit well with Bills of Rights.

Nairobi's City Fathers, from the city's founding, have treated the "native" population with a paternalism that has invited rights' violating behaviour of such cruelty that it almost always comes as shock when one sees it in action. The City Fathers, and the central government that backs their anti-people plays, have always segregated the city - the wealthier suburbs and the Eastlands wasteland of untidiness in need of a firm guiding fatherly hand by Those Who Know Better.

This attitude, unsurprisingly, pervades city planning. It is the guiding light of the newly-minted roadsweeping company otherwise known as Nairobi Metropolitan Services, which has theoretically taken on the onerous task of physical planning, public health, public sanitation and public transport. Its 100-day anniversary was marked by the presidential flagging off of water bowsers and off-road ambulances. The president has "inspected" cabro works in the Nairobi Central Business District, giving the general in command top marks for his efforts. The general has attracted a positive press from the usual boosters - professional types that do not want to encounter mikokoteni, nduthists, matatus or hawkers in the streets of their beloved CBD. In their minds, it is a matter of time before martial discipline sorts out the city's issues and it can take its rightful place among the great cities of the world: London, New York, Paris, Munich, Milan and Singapore.

General Badi & Co., in keeping with the expectations of their boosters, have announced that, just like Rwanda's Kigali, one day in each month will be dedicated to mandatory roadsweeping by those in the city.  General Badi announced, portentously, that "this will come into law; it will be a must" to the ponderous praise of those who want government to be their daddy. A few things, though, escape their attention. Or, as I read it, they have completely ignored what is plain to see.

First, regardless of the legitimacy of the deed of transfer, General Badi was not elected to his position; he was appointed to it. He is accountable to his appointing authority. If he messes up, he can't be removed by the voters of the city. It is up to his appointing authority to decide whether or not he is doing a bang up job. So far, his appointing authority is happy with cabro works and branded water bowsers.

Second, a corollary to the first point. He is only accountable to his appointing authority for how he spends taxpayers' money. He need not present a budget for his operations to anyone other than his appointing authority. He is not subject to legislative oversight by the County Assembly. He does not have to lay his budget or his plans before the County Assembly. If he is summoned to attend before the relevant county assembly committees responsible for oversight of the areas under his charge, he can flip the committees the bird and suffer no adverse consequences. He can spend the billions under his charge without further reference to the county government.

Third, the opacity of the General's operations is a recipe for great corruption and if one argues that the Kenya Defence Forces is as white as the driven snow when it comes to graft, one has simply not been paying attention. The Air Force itself, where the general hails from, has yet to satisfactorily explain its dodgy purchase of jet fighters from Jordan that have never seen the great blue yonder. And now the man and his cohort are entering into public works contracts under unknown terms for unknown sums. If a billion or two evaporate into the ether, no one would know.

Fourth, the general is not trained to manage municipalities. Planning air war campaigns and implementing plans to revivify public health services are alike as chalk and cheese. The tendrils of industrial action emanating from the county's health workers will soon enough choke his grand plans for "21 new hospitals" simply because he does not seem to know what he wants to do to improve public health services.

The face of paternalism in Kenya has always been that of autocracy. Kenyans who don't see the light are to be beaten into submission. In Nairobi, the beating has always been meted out by the City Askaris. In order for General Badi to ensure that the residents of this city "turn out in large numbers" to sweep the roads, he will either have to persuade them that it is a good thing or he will have to force them to comply with his "it will be a must" way of thinking. If the latter, he will need to turn out the City Askaris, rungus and shields, to crack heads. Either way, that bit of the Bill of Rights about slavery, servitude and forced labour, is about to meet the General's new cohort. I will leave the irony of an Air Force general commanding City Askaris for others to muse about.

Failing professionally in Nairobi City

The Mission of the Ministry of Defence is "to defend and protect the sovereignty and territorial integrity of the Republic of Kenya; assist and cooperate with other authorities in situations of emergency or disaster and restore peace in any part of Kenya affected by unrest or instability as assigned." No matter how hard you look, you will be hard pressed to find in its service charter the management or administration of civilian agencies. The civilian staff of the Ministry of Defence exists to assist the professional service personnel in the execution of the Ministry's core function: the defence and protection of the Republic.

In recent months, because of the perceived professionalism of service personnel, serving military officers - as opposed to civilian members of the Ministry staff - have been deployed to perform civilian functions. The assumption is that what these civilian functions need is a "professional" to ensure that things run, if not smoothly, efficiently. The expectation is that things will get done. I am afraid that there s a core misunderstanding of governance and the management of civilian institutions.

If you have been paying attention, one of the strangest sites you will see along Harambee Avenue every now and then is an NMS-branded water bowser being used to water the grass on the perimeter wall of the Sunken Car Park opposite Electricity House. If you have waked past Garden Square Restaurant, that venue for funeral and wedding committee meetings, you will see the pavement (and the flower beds) has been converted into a car park. The irony isn't lost on me that NMS's offices are in KICC, overlooking Garden Square and the patently illegal car park.

Devolution has not served Nairobi City County well. The first Governor made promises about city services that he did not keep. His successor, riding on his man-of-the-people credentials, made even more grandiose promises that he has not kept. The various principal secretaries with an interest in the management of municipal services - notably infrastructure, housing, urban development, lands, physical planning, environment, water, sanitation, health, transport and internal security - have one their bit to interfere in the management of the city, contributing to the chaos that makes life for the residents of the City unbearable.

It sometimes shocks me that there are senior government officials who think that the laying of cabro pavements is a sign that NMS is getting things done. A casual walk along City Hall Way or Tom Mboya Street or Mumias South Road or the internal roads in Tassia and Fedha and Kariobangi South and Madaraka shows you that NMS has absolutely no idea what it takes to administer a city or offer municipal services of any kind. The NMS water bowser grass watering boondoggle is merely proof that the NMS leadership is not well-suited to the task it has been given.

Soldiers and police officers are trained in many important areas. But they are not trained to manage municipalities or offer municipal services. That is not why their organisations exist nor what they do. Professionalism may define their service to the Republic, but their professional skills are not best-suited to dealing with City Fathers, the needs of city residents, or the politics that ensures that it is only by consensus that shit will get done. It's not their fault, but soldiers and police officers don't have and never will have the imagination or managerial and administrative skills needed to offer municipal services.

Let me demonstrate why I believe NMS is doomed to failure. Mumias South Road connects Rabai Road and Outer Ring Road. It's approximately four kilometres long. Along the busy road are primary and secondary schools, places of worship, shopping centres, hospitals, bus stages, and densely-populated residential areas. If, as I suspect it will, NMS turns its attention to Mumias south Road, it will concentrate its efforts on filling in potholes and repairing pavements. It will not, because none of its managers or staff have the imagination to, include road furniture and facilities to assist people with disabilities to effectively use the whole length of the road. This was Dr Kidero's failure. It was repeated by Mike Sonko. Gen. Badi will only be the latest in a long line of municipal failures. At least Gen. Badi will fail professionally. But fail he will. 

The tunnel vision of the blind

Seven years ago, rather tendentiously, I declared that because of Parliament, the Jubilee government "may go down in history as the worst government. Ever." Three years before, I had declaimed that "no longer should Kenyans be held hostage to the selfish goals and objectives of politicians; it is the responsibility of their representatives, through such organs as the PSCs to ensure that when decisions are taken, they are taken with the national interest in mind." In both cases I had underestimated the long tail of the not-so-dead KANU-ism that has proven as tenaciously resilient as witchweed.

Covid-19 gave the national executive the opportunity to subvert the ostensible separation of powers intended by the Constitution. The irony of such subversion occurring on the tenth anniversary of the promulgation of the Constitution is not lost on the discerning. In five months, Parliament has been neutered and its power cast asunder like so much flotsam. From the moment various "parliamentary groups" were summoned to State House and read the riot act, Parliament's autonomy and independence has become a figment of our imagination. What began has a "handshake" three years ago has sealed the Twelfth Parliament's fate - Parliament can no longer claim to be separate from, or independent of, the national executive.

Martha Karua, the eponymous leader of NARC-Kenya, has a stark warning, which I paraphrase: if Parliament fails to re-assert itself, to take black that which has been granted by the Constitution, dodgy health-sector tenders will be the least of our worries. In my estimation, though, rigid fetishisation of the constitution will do more harm in the long run, and that includes the zealotry of the implement-the-constitution religion that is demanding the dissolution of parliament because it has failed in implementing the two-thirds gender rule.

No political system is perfect. Ours certainly is imperfect in many respects. The constitution was among the most difficult tools in resolving the imperfections of our system. We continue to suffer these imperfections because], on the one hand, the political elite will do everything in their power to prolong their place at the national trough even if it means running the national finances into the ground. On the other hand, Wanjiku prioritises immediate survival concerns at the expense of long-term political health because when one lives hand to mouth for most of the year, and one is faced with a once-in-a-century epidemic, one can't spend too much time parsing whether or not women, youth or the disabled have received a fair constitutional shake. It is the middle classes of intellectuals, business leaders, ministers of faith and political party apparatchiks who are supposed to discern the needs of the people and drive the ship of state into the calmer waters of long-term political, economic and social stability. But the middle classes, at the expense the Wanjiku they are supposed to lead, guide and assist, have cast their lot with the political elite in the hopes of inheriting the mantle from the political elite. The middle classes have betrayed their cause in the false hope of ascension into the ranks of the rich and powerful.

If the fervour with which the 2022 general election is being conducted is anything to go by - if you really think that they are not campaigning, you have not been paying attention - the political elite and Kenya's tabloids have completely forgotten the existence of Wanjiku and, instead, have turned their world into this massive echo chamber where only their ideas and views of the world percolate. Poverty? Kenyans aren't poor - even during the pandemic, inflation was low and exports were up! Unemployment? It is only temporary; as soon as the pandemic ends, the economy will roar back into full productivity on the back of higher tourist visitors and greater demand for cut flowers! Political instability? Please! Now that parliament and State House are in sync, the Big Four Agenda and the BBI Initiative will give the people what they ahem always wanted: a seat at the table for the people who reflect the face of Kenya! In short, if the middle classes and the political elite they serve don't wish to see it, then it doesn't exist.

The BBI's recommendations will be rammed down our throats. The Big Four will be implemented come hell or high water. CBC will churn out successive generations of unquestioning drones. But only if tunnel-vision prophecies by the blind come to pass. And none are as blind as the political elite, the Fourth Estate and the predatory bankers who bankroll the whole kit and caboodle. Listen to them at your own peril.

A pox on your war

As we ponder constitutional changes, let us define a Nairobi Capital City governance system that is insulated from politics of the day, and that is based on professional execution and delivery of services. On the minimum we may need a 10 year “lease” for the NMS mandate to allow it to turnaround the city, before we revert to an elected county mandate. Nairobi has been an extraordinary problem requiring an exceptional constitutional consideration. - Soldier on General Badi, Nairobi stands with you

The peoples of Nairobi City County have had the opportunity to elect county governments on two occasions. The first time, they elected a charlatan. The second time, they elected a buffoon. But it was their choice. They exercised their franchise freely and without intimidation. They got the government that they elected. If they want their government to do more, to do better, they will elect one that will do just that. That is the bargain they, and the voters in the remaining 46 counties, made when they participated in the referendum that, among other things, led to the promulgation of a constitution that established Nairobi City's county government. It is time for Nairobi's "saviours" to accept that unless they are willing to present themselves at the hustings, their interventions mean as much as a fart in a hurricane. They should accept this unpalatable fact - and move on.

General Badi and his band of merry men may be doing a bang up job but no one elected them to perform that job. He is unaccountable to the people who matter - the voters (and residents) of Nairobi. No matter how well he executes his mandate, he is not the choice of the peoples of Nairobi and unless he is elected to office in the county government, he never will. No one has the right or authority to grant him a "10 year lease". To even argue that what he is doing falls within the confines of the constitution is to blind oneself to the inherent risks of such extra-constitutional shenanigans.

It is not as if the existing legal framework doesn't provide for a Badi-like arrangement. The Urban Areas and Cities Act, 2011, offers City Fathers the opportunity to appoint city managers to perform the tasks that General Badi is purporting to perform. That the provisions of this Act have suffered the gimlet eye of General Badi's benefactors is an indictment of their capacity to "think out of the box". They are confined in their fantasies of executive imperialism that we thought had been buried six feet under on the 26th August, 2010. Their acolytes, like the author of the unfortunate screed at the top of this post, have conveniently forgotten why we wanted executive imperialism to be cast on the ash heap of history - the corruption and abuse of office that it violently engendered.

That Nairobi City's government is a mess goes without saying. That City Fathers have proven to be corrupt saboteurs can be seen, plain as day, from the effects of the works of their hands. But Nairobi's peoples do not deserve to be cheated of the opportunity to build systems that serve their interests. It distresses me at a professional level that my colleagues in the Bar have been unable to successfully overturn General Badi's installation as an unelected City Father not only on constitutional grounds but on statutory ones as well. (If you were to ask the more serious members of my profession, they will quietly admit to you that the legal framework underpinning General Badi's "authority" is flimsy to the point of being ephemeral. They choose not to shout this out in the agora because it may endanger fat briefs when they are approached to offer legal services in matters connected to this municipal coup.)

One of the most vital functions of the City County Government is regulating "development" - what we know as the building and construction industry. Since the burial of the Nairobi City Commission, development has not only been an area of great graft, but one that has caused untold misery from the dozens of buildings that have collapsed to the spectacular chaos in un-planned construction. What we sniffily refer to as "informal settlements" are the result of development control that has abandoned all pretence at professionalism. Looking at the things General Badi has tom-tommed of his first 100 days, it is plain that he intends to follow a well-beaten path - but with military precision. He brings no expertise at development control and it shows. When the dust settles on his iniquitous tenure, maybe we will find out for whom he was beard. 

It's time to read the Kenya Gazette, friend

One of the most difficult things for a legislative drafter is to push back against over-eager senior civil servants who believe things that don't exist. Every time I see Gazette Notice No. 2356 of 2017, also known as the plastic bag ban, I can feel the hairs at the back of my neck rise because I know how the poor drafter who was forced to clear that document feels. It is one of the most destructive Notices published by the Government - not because it bans single-use plastic bags of various descriptions (we all accept that as a good thing) but for encouraging Judy Wakhungu's successors in the taking of statutory shortcuts regardless of the legislative mess they leave in their wake.

Of the more destructive officials are to be found the ones who flit from one bad idea to the next without pause, upending decades of legislative-drafting consensus on what the State can and can't do through subsidiary legislation. In many cases, you will be witness to personal and private agendas masquerading as official government policy, the naked political ambition camouflaged by long-winded soliloquys on "national development" and similarly portentous and pretentious pablum. The latest, going by the high dudgeon one has occasioned, are "presidential directives", a catchall expression that implicates the Head of Government in schemes of doubtful economic and political value.

Distilling government policy is hard enough without inserting ill-advised legislative proposals in the mix. When Government settles on a policy, and the entire Cabinet is agreed on what that policy is, it isn't always an automatic outcome that legislation will be enacted to give effect to that policy. On many occasions, it is sufficient for the bureaucratic state to re-arrange budgets and programmes to incorporate the policies activities. Implementation of policy can sometimes turn on a re-deployment of personnel and the funds to go with such redeployment.

Every now and then, though, a new law or an amendment to an existing one is required. Care, though, is called for. New laws these days have a nasty habit of creating new offences. It doesn't pay to give the police, the DPP, the EACC and other law enforcement organisations fresh grounds for hounding Kenyans trying to make their way in an increasingly fraught world. New laws, also, seem to require further disbursements from the public purse, much to the chagrin of the mandarins of the National Treasury. The increasing number of "funds" is almost always a pointer to the increasing clout of individual mawaziri - the larger your share of the national revenue that you control, the more clout you wield among your Cabinet colleagues. New penal provisions and increased public spending occasioned by new laws point to policy failures that will only reveal themselves when it becomes clear that the new offences are a waste of law enforcement time and a drain on the national coffers for no discernible benefit.

Most of you live your day to day without having to worry about what is being cooked up by civil servants. Indeed, many of you don't really care for the contents of the kenya Gazette, published every single Friday by the Government Press. In my opinion, you must rouse yourselves from this slumber if you are to better understand why your Government does the things it does. When a Government department "supports" the manufacture of a "low-cost" motor vehicle that looks like it was put together in the dark with parts thrown out of one of this Kamukunji jua kali workshops, you can be sure that the mandate to support that project is hidden among the thousands of Notices published in the Kenya Gazette each year. But because you weren't paying attention, the announcement by department of Government that public monies will be spent on the equivalent of a mkokoteni with an engine comes as a bit of a shock.

It is time to accompany your anti-government anger with relevant information. Your first port of call should be the Government Press and the Kenya Gazette it publishes every week. What new agencies have been established? What new parastatal bosses have been appointed? What new task force has been convened? What new offences have been created? What new scheme are our taxes financing? All these questions, and more, are contained in the Gazette - if you only knew to read it and how to read it.

No one wants that

One of those "read my CV" types had this to say on Twitter about the wayward senator:

If the president who is Commander in Chief announces curfew starts 9PM but Kenyans including elected leaders are out casually drinking and dancing at 2AM, then the question must be asked; do Kenyans even respect the resident??! this is crazy SMH.

We'll leave the punctuation for now and pay greater attention, instead, to the implicit assumption that what a president says must be obeyed. It implies, in my opinion, that the president is some sort of king whose word is law. After all, taking that logic to its ultimate end, a Commander-in-Chief must be obeyed because he is the Commander-in-Chief, if for no other reason.

Many Kenyans, including the president, have repeated ad nauseam that Kenya is a "nation of laws". Few of those pining for the glory days of the imperial presidency, though, believe it. So many of them erroneously impose additional interpretations on that maxim, including that the president's word is law. You can see such assumptions in the way "presidential directive" is used to push through agendas that fly in the face of constitutional, statutory and regulatory propriety and lead to absurd and tragic outcomes.

It is impossible to persuade these types that "commander-in-chief" for an elected president is not the same thing as the head of a military junta that has suspended the constitution and is ruling by fiat. It is impossible to persuade them that Kenya has explicitly and expressly rejected the concept of a king or emperor. Kings and emperors are never elected. Heads of military juntas are never elected. Ruling by fiat is not in Kenya's constitutional order. If the president's "announcements" are not translated into Acts of Parliament or subsidiary legislation made thereunder, then they have little, if any, legal effect. It is possible that the "announcements" are a window into the policy direction taken by the executive, but it is a mistake to take them as laws to be obeyed on the pain of judicial punishment.

The most important object of the Second Liberation was to corral the imperial presidency within the confines of the constitution, to limit its impunity, and to prevent its abuse. The presidency is meant to be exercised in accordance with the constitution and the laws made by Parliament. It is not, regardless of the feverish desires of its boosters, meant to be exercised contrary to the written law even in dire emergencies. Three months after the announcement of the first case of Covid-19 in Kenya, it is no longer an "emergency" but a crisis that must be managed by the machinery of the state within the confines of the constitution and the written laws of the land. Presidential announcements are not law. They are not intended to be laws. They cannot be taken to be laws. To suggest that they are is to harken to a bygone and hated past.

We fail to appreciate the effects of presidential impunity in a democracy - it gives license to one and all to play fast and loose with the rule of law. We get to pick and choose which laws to obey, which ones to bend, which ones to ignore and which ones to break. The wayward senator is of a piece with the imperial presidency and the murderous, extra-judicial-killing police. The skein is the same. The effect is a lack of confidence in the institutions of the state and a distrust of the constitutional, statutory and regulatory order. Our national purpose is subverted when we elevate the presidency above the law and preach the virtues of such extra-legality. In the end, if such bad constitutional ideas are allowed to fester and spread, we end up where we fled from: presidencies for life, single-party dictatorships and widespread impunity. No one wants that.